Bleyer v Google Inc [2014]

An interesting case in the Supreme Court of New South Wales Bleyer v Google Inc [2014] which refers to the English case of Jameel and also the Australian approach to whether Google is a publisher. The Claimant, Roland Bleyer, brought an action against Google Inc, that they published seven pieces of defamatory material about him which had been seen by three people as a result of google searches made by them.

The first matter related to a link to a story in California against a Roland Frank Bleyer, the second defamatory matter was the web page which came up as a result of that search. The Claimant contended that the Defendant was liable in its role of publisher of the third party material and the link which was generated as a result of the searches made. The other five matters the Claimant alleges as being defamatory of him concerned “snippets” or excerpts which gave the searcher accessibility to the web pages by way of a link.

The Claimant lodged his amended statement of claim on the 7th August 2013 where he detailed the defamatory matters complained of. The other five matters he pleaded were snippets where the searcher was able to gain full details of each matter through the Google search facility after clicking the particular link.

The Claimant revealed in a letter of the 28th June 2013 details of the people to whom the matters were published which consisted of three people, two living in Victoria and the other in New South Wales. Two of the people read the matters in December 2012 and on the 1st March 2013. The Claimant’s Solicitors wrote to Google Inc to inform them of this. Google exchanged letters with the Claimant Solicitors between 22nd – 27th March 2013 and it was after this date in April that the third person read the postings. Therefore, Google Inc would have been on notice of the defamation alleged by the Claimant and Judge McCallum observed that the Claimant’s claim should be limited to publication to one person because of this.

On the 21st May 2013 Google Inc in accordance with its procedures of notice and take down withdrew the URLs complained of from and on the 23rd May it received the Claimant’ statement of claim. Google Inc made a request for the proceedings to be stayed citing the following:
“(a) Lord Phillips’s proportionality principle is engaged and there is an obvious and substantial disproportion between the cost of the exercise and conceivable vindication;

(b) Google is not a publisher in defamation law of its search engine results web page;

(c) …the innocent dissemination defence prescribed by common law and under s 32 of the Defamation Act 2005 is positively engaged; and in any event

(d) a judgment in Mr Bleyer’s favour will, more than likely, be unenforceable in the United States.”

Google Inc submitted as a separate issue that the third to seventh defamatory matters complained of by the Claimant could not be substantiated as the Claimant had failed to back up his pleading that the snippet and the material linked to it was a single publication. Judge McCallum on looking at this did not consider it essential to decide that particular issue.

A large part of the argument put forward to the Court was whether the Court of Appeal case in England of Jameel referred to above was applicable within this jurisdiction. Mr Jameel brought a claim in England against the publisher of a newspaper based in the USA, which newspaper in England could only be bought by those subscribing to it.

The judgment described Mr Jameel as a “foreign claimant”, the Defendant said only 5 people subscribed to their newspaper in England so therefore only they would have access to the article on the internet. Out of the five people, two of them did not know the Claimant and the other two were referred to as in his camp.

The Defendants were served out of jurisdiction and as such could have made an application to have this set aside. If that had happened then the consideration would have been whether “a real and substantial tort has been committed within the jurisdiction” It was held that the same test could be used in determining as to whether the proceedings could be dismissed as an abuse of process.

It was decided in the case of Mr Jameel that he could not rely upon the proceedings in England helping him with regard to the publication in the rest of the world and the Judge in this case adopted the same approach.

The Claimant contended that the reason the Court did not follow Jameel was that the Court in England was subject to the Human Rights Act 1998 and Right to Freedom of Expression under 10

Judge McCallum noted that the reasoning given in re Jameel centred on proportionality thus reference made to the Human Rights Act was used as a test of the conclusion it would have, in other respects, reached.

The Judge considered whether the Court could stay or dismiss an action for defamation as an abuse of process that the time and costs involved outweigh and are out of proportion to the damage caused to the Claimant’s reputation. The Judge was satisfied that the Court had the power, where appropriate, to dismiss or stay an action where the resources of the parties involved and the Court were out of proportion to what is involved and at stake and that such disproportionality could be seen as an abuse of process regardless of the Jameel case. Although there was a tentative acceptance of it.

Judge McCallum went on to consider whether Google was a publisher of its search engine results.  Google Inc had no editorial imput, no control over material posted on the web by third parties, it operated a “notice and take down” on a voluntary basis. “Snippets” was explained as excerpts of a web page with access to those pages by an automatic link.

The Judge explained that for a party to be held responsible for a defamatory publication they must have known and were involved in the words complained of, which had appeared in the publication. Further, the Judge confirmed that she held as a matter of law that an Internet Service Provider (ISP) had a passive role in processing postings on the internet and therefore could not, in common law, be described as a publisher of them. She could not accept the Claimant’s assertion that this could only be settled in a trial with the law deciding the outcome.

Judge McCallum felt that, after looking at the evidence before her, the Claimant would not be able to prove Google Inc was liable for the first two of the matters. With regard to the 3rd matter, Google Inc had already received notice of the Claimant’s complaint.

They did put in force their voluntary system of notice and take down and there was a positive response to some but not all the matters complained of. She concluded, however, regarding publication, that this was closely connected to the proportionality principle.

The Judge concluded that the Claimant had brought his claim to vindicate his reputation and she believed out of the three people who had viewed the postings only the one, after which Google Inc had received the notice from the Claimant’s Solicitors, could been viewed that they be liable as the publisher.

Google Inc estimated their costs, without an appeal, at $370,000 which the Judge believed was a conservative estimate. She further discussed their defence and whether this could be by way of innocent dissemination under s.32 of the defamation Act or under clause 91 of schedule 5 to the Broadcasting services Act 1992.

Judge McCallum noted that if the Claimant succeeded with his claim he would not be able to enforce any damages. The interest at stake was his right to vindicate his reputation before that one person that the Judge reasoned, out of the three, was the only one to consider after Google Inc had received notice from the Claimant’s Solicitors.

The Judge believed that the time, costs and Court resources involved in the case were out of proportion to the interest at stake. Accordingly, under s.67 of the Civil procedure Act 1995 she permanently stayed the proceedings.

In England this case would have been struck out.A publication to one person would clearly be an abuse either before or after the Defamation Act 2013. The court in Australia as would be the case in England did not consider that Google was a publisher.

A surprising case to bring which in this jurisdiction you would hope would not now be contemplated but would be bound to fail if it was.

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